The Volokh Conspiracy
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Justice Sotomayor Asks Texas Governor Abbott To Grant Executive Reprieve To Death Row Prisoner
Case of the Speluncean Explorers Redux
Tonight the Supreme Court denied a stay of execution in Roberson v. Texas. There were no noted dissents, but Justice Sotomayor issued a ten-page statement respecting the denial of the application. Justice Sotomayor acknowledged that the defendant "presents no cognizable federal claim." Therefore, the Court cannot grant relief. But the final paragraph includes an unusual plea:
Under these circumstances, a stay permitting examination of Roberson's credible claims of actual innocence is imperative; yet this Court is unable to grant it. That means only one avenue for relief remains open: an executive reprieve. In Texas, as in virtually every other State and the federal government, "[t]he Executive has the power to exercise discretion to grant clemency and affect sentences atany stage after an individual is convicted[.]" Vandyke v. State, 538 S. W. 3d 561, 581 (Tex. Ct. Crim. App. 2017).Preventing the execution of one who is actually innocent bymeans of a review "unhampered by legal technicalities" is a core historical purpose of the executive power to grant pardons or reprieves. Christen Jensen, The Pardoning Power in the American States 49 (1922); see also Herrera v. Collins, 506 U. S. 390, 417 (1993) ("History shows that the traditional remedy for claims of innocence based on new evidence, discovered too late in the day to file a new trial motion, has been executive clemency"); Graham v. Texas Bd. of Pardons and Paroles, 913 S. W. 2d 745, 748 (Tex. Ct.Crim. App. 1996) (same). An executive reprieve of thirty days would provide the Texas Board of Pardons and Paroles with an opportunity to reconsider the evidence of Roberson's actual innocence. That could prevent a miscarriage of justice from occurring: executing a man who has raised credible evidence of actual innocence.
Yes, you read that right. Justice Sotomayor issued a plea for clemency to Texas Governor Greg Abbott.
Last week I wrote about the potential for clemency in Glossip v. Oklahoma. I noted that one of the justices in the fictional "Case of the Speluncean Explorers" likewise asked the Executive for clemency. I can't recall a Supreme Court justice making a similar request. But Justice Sotomayor may be one of the first.
